Observance of Muslim Practice
The Coffin Mew Court of Protection team read with interest, the findings from a recent Court case where the balance between a protected person’s religion and practice, and his best interests, was tested.
The case concerned a 39 year old man, born in Pakistan, but who has lived in West Yorkshire all his life. He is from a Punjabi family and suffers from a profound learning disability, and functions intellectually at the developmental level of a 1-3 year old. He lives in a supported care home and has been raised by his family throughout his life within the Sunni denomination of Islam. Due to his profound level of intellectual impairment, he does not have any understanding of religious matters.
The applications before the Court related to two issues which arose in relation to his general observance of religious custom and practice while in his supported care home;
1. An application by the Official Solicitor on his behalf for a declaration that it is not in his best interests to fast during the daylight hours of Ramadan;
2. An application by his father for a declaration that it is in his best interests for his underarm and pubic hair to be trimmed in accordance with Islamic cultural and religious practice, appreciating only to the extent it is safe and reasonable to do so.
The application in relation to fasting was straightforward as all the parties agreed. The judge, Mr Justice Cobb, was wholly satisfied that it was not in his best interests to be expected to fast during Ramadan. It was accepted that he did not have the capacity to make a decision to fast as he could not understand; what fasting is, length of the fast, religious reason for fasting or the effect on his body.
Mr Justice Cobb also found along the same lines that he does not have the capacity to appreciate the concept that Muslims trim their underarm and pubic hair- recommended practice for those who are legally competent.
The removal of pubic hair for the ‘legally competent’ Muslim (those who have capacity to make decisions), whilst not obligatory, would be viewed as a minor sin if unattended.
As he does not have ‘legal competence’ it was held that it was not recommended practice for him to trim/remove hair. Further there is no obligation on his carers to trim/remove his pubic or underarm hair and his religious rights are not being violated by not attending to this.
It was accepted that this is not required of him in accordance with the tenets of the Islamic faith; there is no other benefit to him in undergoing this procedure, which carries avoidable risks of harm to him and/or his carers were he to become stressed in the process.
Mr Justice Cobb noted that his father was entirely focused on his best interests. His father is well motivated and understandably concerned, as a devout Muslim, to ensure that he is enabled to live his life as closely to the Five Pillars of Islam as achievable and practicable.
The principles in this case may be of assistance to other cases in the Local Authorities area and more generally to adult care services which have a responsibility for Muslim adults who lack capacity. Mr Justice Cobb stated of course that each best interests decision must turn on its own facts.
If you require advice in relation to health and welfare or property and affairs applications to the Court of Protection, please contact Hannah Rowlatt in our Court of Protection team on firstname.lastname@example.org or 023 9236 4306 (based on the South Coast).
Or Amy Chater on email@example.com or call 01235 355 902 (based in the Thames Valley region)